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Decision No. 14,580

Appeal of R.W., on behalf of A.W., from action of the Board of Education of the Garden City Union Free School District relating to assignment of grades and award of credit.


Decision No. 14,580


(June 4, 2001)


Guercio & Guercio, Esqs., attorneys for respondent, Thomas M. Volz, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the Garden City Union Free School District ("respondent") declining to award his daughter credit or assign her a grade for certain coursework. The appeal must be dismissed.

Petitioner's daughter currently attends eleventh grade at respondent's high school. During the 1996-97 school year, petitioner's daughter was enrolled in the seventh grade in respondent's district. At the end of that year, in April 1997, petitioner's wife requested that their daughter be permitted to take the Regents examination in Sequential Mathematics I ("Math I"), scheduled to be administered on June 17, 1997, despite not having taken the Math I course. In lieu of meeting the stated course requirements for Math I, the student offered to submit a mathematics project she previously completed during the seventh grade. Generally, students take Math I in the ninth grade and the Math I Regents examination is administered to students at the end of that year. However, students participating in respondent's Pupils Academically Gifted ("PAG") Program, such as petitioner's daughter, take the Math I course in the eighth grade and the examination at the end of that year.

On June 9, 1997, respondent denied petitioner's request. Petitioner commenced an action in New York State Supreme Court, Nassau County, seeking an injunction barring respondent from preventing his daughter from taking the Math I Regents examination. By stipulation of the parties, petitioner's daughter took the Math I Regents examination when it was administered in August 1997, while a decision on the merits was pending. On August 27, 1997, the court granted petitioner's application. Although petitioner's daughter passed the examination, respondent did not award the student credit or a grade for the Math I course. The student was enrolled in the Math I course for the 1997-98 school year as part of her eighth grade curriculum.

In September 1997, petitioner requested that his daughter receive credit for Math I and be permitted to study Sequential Math II ("Math II") independently, pursuant to respondent's independent study guidelines. Petitioner also requested that, instead of requiring his daughter to attend the Math I course, respondent permit her to enroll in German IB that year, even though she had not taken German IA. By letter dated September 23, 1997, respondent's principal informed petitioner that his daughter was permitted to take Math II as an independent study on a pass/fail basis. Upon successful completion of the independent study and the Math II Regents examination, the Regents examination grade and a pass/fail notation would be entered on the student's transcript. The student would receive credit for Math II but would not receive a course grade for purposes of calculating a grade point average ("GPA").

The principal further indicated that, consistent with petitioner's request, his daughter would be permitted to audit German IB, instead of taking the Math I course. Petitioner's daughter was also taking French as a second language. The letter stated that respondent would not award petitioner credit or a grade for German IB. Finally, respondent's principal indicated that petitioner's daughter would not receive credit or a grade for Math I, as she had not satisfied the district's independent study guidelines for that course.

On January 22, 1998 petitioner commenced a proceeding in New York State Supreme Court, Nassau County, challenging respondent's September 23, 1997 decision. In that proceeding, petitioner sought an order directing respondent to grant his daughter credit for Math I, enter a grade for that course on her transcript and calculate the grade into her GPA; directing respondent to enter the grade achieved by his daughter for Math II on her transcript and calculate it into her GPA; and directing respondent to award his daughter credit and a grade upon her successful completion of German IB, and to enter that grade on her transcript and calculate it into her GPA.

On June 12, 1998, while the prior proceeding was pending, petitioner again sought injunctive relief in Supreme Court, Nassau County, barring respondent from preventing his daughter from taking the German proficiency examination scheduled for administration on June 22, 1998. Respondent had denied the student permission to take the proficiency examination because she had only been auditing German IB. The court granted petitioner's motion, and his daughter was permitted to take the examination. She achieved a score of 98%. In accordance with its September 23, 1997 letter, respondent did not award her credit or a grade for the German IB course she audited.

Petitioner's daughter successfully completed independent study in Math II and also passed the Regents examination. Respondent awarded her credit pursuant to 8 NYCRR "100.5(d)(1), entered a "Pass" notation on her transcript, but did not give her a grade for the course.

By order dated June 15 and entered June 17, 1999, the court dismissed petitioner's Article 78 proceeding commenced in January 1998 for failure to exhaust administrative remedies. Specifically, the court held that petitioner must first appeal to the Commissioner of Education prior to seeking judicial intervention. Petitioner commenced this appeal on August 25, 1999.

Petitioner challenges respondent's refusal to award his daughter course credit and/or grades in Math I, Math II and German IB. He contends that such determination violates the Regulations of the Commissioner of Education as well as respondent's own policy. Petitioner also asserts that respondent's action deprives his daughter of equal protection under the New York Constitution and the Fourteenth Amendment of the United States Constitution. Respondent contends that the appeal is untimely and is barred by the doctrine by resjudicata. Respondent further asserts that its actions comply with law and regulations, are not arbitrary or capricious and that the appeal must, therefore, be dismissed.

Before turning to the merits, I will address a number of procedural matters. Respondent contends that petitioner's verified reply contains new factual allegations and exhibits that should have been included in his petition. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add exhibits that should have been in the petition (Appeal of Marquette, 40 Ed Dept Rep ___, Decision No. 14,568; Appeal of Balen, 40 id. ___, Decision No. 14,532). Although I will accept petitioner's reply, I will not consider those portions that contain new allegations that are not responsive to new material or affirmative defenses set forth in the answer. Moreover, because the exhibits attached to the reply were available at the time petitioner commenced this appeal and could have been made part of his petition, I will not consider their belated submission with petitioner's reply.

Respondent also asserts that the appeal must be dismissed as untimely. Section 275.16 requires that an appeal to the Commissioner of Education be commenced within 30 days of the action or decision complained of, unless excused by the Commissioner for good cause. Here, petitioner first sought review of respondent's September 23, 1997 decision by timely commencing a proceeding under Article 78 of the Civil Practice Law and Rules - within four months of respondent's decision - in Supreme Court, Nassau County on January 22, 1998. Upon dismissal of that proceeding on June 15, 1999 for failure to exhaust his administrative remedies, petitioner commenced this appeal on August 27, 1999. An unsuccessful attempt to litigate a dispute in court which does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal to the Commissioner, when the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding (Appeal of Goltz, 40 Ed Dept Rep ___, Decision No. 14,571; Appeal of Kelly, 35 id. 235, Decision No. 13,528; Appeal of McCarthy, 30 id. 264, Decision No. 12,458; Appeal of Schwarz, 28 id. 101, Decision No. 12,045). Petitioner herein states that, although the court dismissed his Article 78 proceeding on June 15, 1999, he was not aware of such dismissal until July 29, 1999 when notice of the court"s action appeared in the New York Law Journal. He attests that, although he provided the court with a stamped self-addressed envelope by which to receive notice of the court's decision, he never received a copy of the decision. Petitioner maintains that he has received prior decisions of the court in this manner, including those rendered in connection with the other motions described herein. Respondent does not dispute petitioner"s allegations, nor is there anything in the record indicating that either party served the other with notice of entry prior to July 29, 1999. Therefore, I find nothing in the record to discredit petitioner"s explanation. Moreover, upon receiving notice of the decision by publication on July 29, 1999, petitioner initiated his appeal within thirty days of such notice (see, Appeal of Johnson, 38 Ed Dept Rep 327, Decision No. 14,045; Appeal of McCarthy, supra). Under these circumstances, therefore, I decline to dismiss petitioner"s appeal as untimely.

Respondent also contends that the appeal must be dismissed pursuant to the doctrine of resjudicata. Respondent"s contention is without merit. Under the doctrine of resjudicata, where a court of competent jurisdiction has already decided claims identical to those raised before the Commissioner, an appeal pursuant to Education Law "310 does not lie (Appeal of Phillips, 38 Ed Dept Rep 165, Decision No. 14,008; Appeal of Jacobson, 37 id. 75, Decision No. 13,808). Petitioner"s claims regarding credit or grades raised herein have not been previously addressed by any court. Respondent argues that petitioner's claims herein could have or should have been raised in his June 1997 proceeding for injunctive relief. Respondent's argument is disingenuous. At that point, petitioner had not yet been informed that his daughter would not receive credit for Math I, nor had the parties had any discussion about Math II or German IB. Petitioner's June 1997 court proceeding, therefore, was necessarily limited to enforcing his daughter"s right to be admitted to take the Math I Regents examination. It was only after receipt of respondent's September 23, 1997 determination that petitioner could be expected to challenge respondent's determination on course credits and grade. Petitioner did so in the January 1998 Article 78 proceeding in which the court declined to address those issues. Consequently, petitioner's claims relating to the award of credit and grades for Math I, Math II and German IB are properly raised for the first time herein, and petitioner"s appeal is not barred by the doctrine of resjudicata.

Turning to the merits, petitioner asserts that, pursuant to the provisions of "100.5(d)(1) of the Commissioner"s regulations, his daughter is entitled to receive credit for Math I. During the relevant time period that section provided, in pertinent part:

(1) A student may earn a maximum of 6" units of credit for either a Regents or local diploma without completing units of study for such units of credit, if:

(i) based on the student's past academic performance, the superintendent of a school district", or his or her designee, determines that the student will benefit academically by exercising this alternative;

(ii) the student achieves a score of at least 85 percent, or its equivalent as determined by the commissioner, on a State-developed or State-approved examination;

(iii) the student passes an oral examination or successfully completes a special project to demonstrate proficiency, as determined by the principal, in the subject matter area;"

The record indicates that, with respect to Math I, petitioner"s daughter did not meet the requirements set forth in "100.5(d)(1) and, thus, is not entitled to receive credit for that course.

There is no evidence that respondent"s superintendent or designee made the requisite determination that petitioner"s daughter would benefit academically by exercising this alternative to earn credit for Math I without taking the course. Nor did petitioner"s daughter secure the principal"s determination of a special project acceptable for the purposes of earning course credit in this manner. It was not until April 1997, at the end of the school year, that petitioner's wife approached his daughter"s principal with a project already completed for some other purpose and asked the principal to retroactively accept it for purposes of earning Math I course credit. The regulation contemplates involvement by a student's principal prior to a student's commencement of any project to permit the administrator to determine the nature of such special project to ensure himself or herself that the student is achieving proficiency in the knowledge, skills and abilities otherwise gained by attending the course. Because the requirements set forth in 8 NYCRR "100.5(d)(1) were not satisfied, respondent's refusal to award petitioner"s daughter course credit for Math I was not arbitrary, capricious or unreasonable (see, Appeal of a Student with a Disability, 37 Ed Dept Rep 11, Decision No. 13,791).

Petitioner's daughter also is not entitled to receive credit for German IB. In asserting his claim, petitioner relies on 8 NYCRR "100.2(d)(3). During the relevant period of time, that section provided, in pertinent part:

Beginning in May 1989, all students who pass an approved second language proficiency examination shall be awarded the first unit of credit in second language instruction, unless thestudent has already been awarded suchfirst unit of credit in second languageinstruction as set forth in section 100.1(b) of this Part. (emphasis supplied)

Petitioner"s daughter took and passed the German IB proficiency examination in June 1998. However, it appears from the record that petitioner's daughter also earned credit for French as a second language. Therefore, because the student has already earned a first unit of credit in second language instruction, she is not eligible for an additional unit of credit for German IB.

Finally, I find no merit to petitioner's claim that respondent is required to issue a numerical grade for Math II and enter such course on his daughter's transcript. In an appeal to the Commissioner, petitioner bears the burden of demonstrating a clear legal right to the relief sought (8 NYCRR "275.10; Appeal of Boiko, 40 Ed Dept Rep ___, Decision No. 14,513; Appeal of Catherine B., 37 id. 34, Decision No. 13,797). In his letter of September 23, 1997, respondent's middle school principal advised petitioner that, upon successful completion of independent study and the Math II Regents examination, the examination grade and a notation of pass or fail would be entered on his daughter's transcript. The examination grade would not be calculated into her high school grade point average. As respondent correctly notes in its answer, although 8 NYCRR "100.5(d)(1) requires it to award course credit in Math II to petitioner's daughter, that regulation does not require respondent to issue petitioner's daughter a numerical grade for the course. Similarly, respondent's policy relating to independent study provides for the award of course credit upon successful completion of the study but does not require the issuance of a numerical grade for the course.

Grading policies and practices are a matter in which local school authorities have considerable discretion, and the application of such policies and practices will not be set aside unless clearly arbitrary or unreasonable (Education Law "1709[3]; Appeal of Mulder, 35 Ed Dept Rep 340, Decision No. 13,563; Appeal of Goloski, 34 id. 565, Decision No. 13,410; Appeal of Ravnitzky, 18 id. 83, Decision No. 9,755). Respondent's determination to award a pass or fail grade for course credit earned outside of the classroom through independent study pursuant to 8 NYCRR "100.5(d)(1) cannot be said to be unreasonable. Moreover, the record contains no evidence that respondent issued a numerical course grade for independent study in other instances. Having failed to establish a clear legal right to the relief sought, petitioner is not entitled to an order directing respondent to issue a numerical grade to his daughter for Math II.

In view of this disposition, I need not address petitioner's remaining contentions.